Member Article

In our third quarterly case law update for 2021, we look at some of the key cases published since April 2021 and consider the lessons we can learn from them.

Health and Safety Related Dismissals

Over the past six months, we have seen the emergence of a series of cases related to health and safety dismissals. Unsurprisingly, several of these relate to Covid-19.

Section 100 of the Employment Rights Act 1996 (ERA) provides protection to employees who are dismissed in several health and safety contexts. There is no period of qualifying service for employees to bring a claim for automatic unfair dismissal under this section. Section 100(1) (d) and (e) of ERA provides employees with protection from being dismissed in circumstances where they leave the workplace and take steps to protect themselves because they reasonably believe there is serious and imminent danger. The cases of Rodgers v Leeds Laser Cutting Limited and Gibson v Lothian Leisure looks at this protection provided within the context of Covid-19.

In both Rodgers and Gibson, the employees involved raised concerns about returning to the workplace during the pandemic due to living with vulnerable family members. In both cases the employees were subsequently dismissed. However, in Rodgers the decision to dismiss was found to be fair whereas in Gibson it was not. This was because Mr Rodgers’ employer had implemented all safety measures recommended by the government to create a Covid-19 secure workplace whereas Mr Gibson’s had not. Further, despite Mr Rodgers raising concerns about returning to the workplace, he had driven his friend to a hospital during the height of the pandemic. As such, the tribunal found that Mr Rodgers could not have reasonably believed that there was a serious and imminent danger to his health and safety whereas Mr Gibson could.

Whilst these cases are not binding as they are only first instance decisions, they do provide reassurance to companies and organisations that have taken steps to ensure a Covid-19 secure workplace that a tribunal is less likely to uphold claims brought by employees following a refusal to return to work. It also shows that tribunals are likely to consider an employee or worker’s attitude towards Covid-19 outside of work when reaching their decision.

Continuing the health and safety theme, the case of Sinclair v Trackwork Limited the Employment Appeal Tribunal (EAT) considered the ambit of section 100(1)(a) ERA which provides protection to employees where the principal reason for their dismissal is that they carried out health and safety activities that they had been designated to do. A finding of unfair dismissal was made where an employee was dismissed for demoralising his colleagues by attempting to implement a new health and safety procedure. Initially Mr Sinclair’s claim was dismissed by the Tribunal as they found that he was dismissed because of the impact of his actions on his colleagues as opposed to carrying out health and safety responsibilities. However, the decision was overturned by the EAT.

The EAT noted that the whole purpose of section 100(1)(a) ERA is to guard against the fact that carrying out health and safety activities is often begrudged by the workforce and therefore it would be nonsensical for an employer to be able to rely upon the upset caused by legitimate health and safety activities as a reason for dismissal unrelated to the activities themselves. The EAT did note that if an employee’s conduct was unreasonable, malicious or irrelevant in the context of their health and safety responsibilities, the protections provided under Section 100(1)(a) could potentially be disregarded. However, Mr Sinclair’s actions did not amount to this.

This case demonstrates that the ambit of section 100(1)(a) ERA is wider than what may be suggested by an initial reading. However, it also demonstrates the tribunal’s pragmatic approach to ensuring that individuals are not unduly penalised for upholding health and safety which is the whole purpose of section 100 ERA.

Changing Terms and Conditions – “Fire and Rehire”

Keeping on the theme of Covid-19, the pandemic has meant that many organisations have needed to change their employee’s terms and conditions of employment, whether that be to enable them to make use of the government’s coronavirus job retention scheme or to make pay cuts to help them to stay afloat. The case of Khatun v Winn Solicitors is a lesson to organisations as to how not to change an employee’s terms and conditions.

As a result of a downturn in work, Winn Solicitors needed to make various changes to its employees’ terms and conditions of employment, including reserving the right to place employees on furlough and to unilaterally reduce their hours and pay. Winn Solicitors advised employees of the changes, stating that they were non-negotiable and if not accepted, the employee would likely to face dismissal. Ms Khatun refused to accept the changes and was dismissed. Ms Khatun brought a claim for unfair dismissal.

The tribunal found that whilst Winn Solicitors had a fair reason for dismissal, specifically ‘some other substantial reason’, their decision to dismiss did not fall within the band of reasonable responses and therefore was unfair. The tribunal criticised Winn Solicitors’ lack of consultation with employees about the proposed changes, the fact that no alternative to dismissal was considered and that Ms Khatun was not offered a right to appeal.

This decision provides confirmation that ‘some other substantial reason’ can be relied upon as a fair reason for dismissal in circumstances where an organisation or company has a sound business reason such as a significant downturn in work, to change an employee’s terms and conditions of employment. However, to avoid a finding of unfair dismissal meaningful consultation with the employees about the proposed changes will need to be demonstrated.

This case is a classic example of the “firing and rehiring” tactic, whereby companies or organisations use the threat of dismissal to get employees to accept changes to the terms and conditions of employment. The legality of this tactic is currently being debated in Parliament and we will provide a further update once a decision has been made.

Constructive Unfair Dismissal – repudiatory breaches “uncurable”

Finally, we consider the case of Flatman v Essex County Council where the EAT overturned a tribunal’s decision and confirmed that once an employer has acted in a way to fundamentally breach an employee’s contract of employment, whatever they do next cannot act to cure that breach. If an employer fundamentally breaches an employee’s terms and conditions of employment, the employee is entitled to resign and bring a claim for constructive unfair dismissal.

Ms Flatman’s role involved daily lifting and she repeatedly asked the Council to provide her with manual handling training, to no avail. Ms Flatman was subsequently signed off work sick for back pain. Upon her return, the Council promised her that lifting would no longer be part of her role and she would be provided with training. However, Ms Flatman resigned and claimed constructive unfair dismissal. Despite the Council’s assurances upon Ms Flatman’s return from work, the EAT still found that Ms Flatman had been constructively dismissed. The EAT noted that by repeatedly failing to provide Ms Flatman with training it had breached the implied duty to provide a safe work environment. As this breach was fundamental and at no point did Ms Flatman affirm the breach, regardless of what the Council did to try and rectify the breach, Ms Flatman had been constructively dismissed.

This case provides clear guidance to employers that once an employee’s contract of employment has been fundamentally breached, regardless of what they do next, they are unlikely to be able to rectify the breach. As such, employers should be proactive in reacting to employees’ concerns as soon as possible, rather than waiting until it is too late.